July 1st, 2011 at 9:38 am

Immigration law is the last and most unrepentant bastion of discrimination in the modern world. Among the causes for discrimination are birthplace, wealth, education, occupation, family ties, political sentiments, and health. Most attempts to reform immigration law, whether motivated by a concern for human rights or to better control borders, only strengthen and refine the discrimination already in place. Not only is this discrimination tolerated, it is even encouraged as a public good. Reformers claim that proper management of these kinds of discrimination will benefit the receiving communities as well as the migrants themselves. How has this come about?

It was not always like this. In the mid-nineteenth century, liberal thinkers believed that free mobility was one of the rights of man and a necessary condition of economic and social progress. By the 1860s these liberal ideals prevailed and were widely put into practice. Most of the countries and cities around the Atlantic Ocean repealed their migration controls as the outmoded legacy of a despotic past. States such as Russia, China, and Japan that continued to restrict movement were considered uncivilized, outside of international norms. International migration took place without papers, restrictions, or any obstacle other than ticket prices and rudimentary health inspections.

But a commitment to free mobility was not the only possible result of the search for freedom and economic prosperity. These same ideals also inspired the rise of the first modern immigration laws in the late nineteenth century. These new laws focused on controlling entry, as opposed to the controls on exit and domestic mobility that had prevailed in the early nineteenth century. The interpretation of freedom behind these laws focused less on the idea of individuals as the bearers of certain rights and more on the idea of a free people with the power of self-government and self-determination. And the first principles of self-determination were the right to shape one’s political community and to guard against threats that might undermine liberty and security. The power to control membership was one of the basic expressions of these rights. This could be easily understood as the right to exclude people who could be a threat to the processes of self-rule and who could undermine the living standards and economic dignity desired by a free people. Some of the most vociferous proponents of these sentiments could be found on egalitarian Anglophone settler frontiers like California, British Columbia, and Australia. These feelings were frequently expressed as a passionate opposition to Chinese immigration. Much of this opposition relied on crude, racist stereotyping of Chinese as filthy, subservient, and, as the childlike subjects of a despotic emperor, inherently incapable of self-determination and participation in a democratic polity. At the same time, it was also grounded in an equally deep fear of unfettered capital as a threat to self-rule and the dignity of the common man. In this context, encouraging the free migration of certain peoples was viewed as a technique by wealthy capitalists to circumvent the interests of self-governing democracy by importing cheap, subservient workers who may well be chained by indenture contracts that provided wages and conditions well below local standards. A free self-determining people did not want a subgroup of what they believed to be degraded coolies in their midst any more than they wanted slavery and slave plantations.

By the 1880s, all these frontiers had enacted laws to exclude Asians. Enforcement was difficult in the early years because of both international criticism and imperfect mechanisms of control. Proponents justified these laws to domestic and international critics as a necessary expedient to protect local communities against an unprecedented danger to their livelihood. In the early years of enforcement, diplomats attempted to gain international cooperation through treaties and agreements. By the early twentieth century, however, negotiation was dropped in favor of insisting that the right to police national borders was more fundamental than the right of migration. Immigration law was to be domestic law and not subject to negotiation. The rights of free mobility were only guaranteed by the institutions of a free government, and those rights stopped at national borders. These nations continued to criticize exit restrictions and the restriction of domestic mobility, as opposed to human rights and progress. But they insisted on the power to restrict entry as indispensable to the constitution of a free government that could guarantee equality before law and free mobility within its borders.

By the 1920s, under diplomatic pressure and relentless advice from the United States and other immigrant nations, most nations around the world had accepted these principles and methods and enacted similar immigration laws. A pair of international conferences also developed standardized international passports. And many nations looked to the United States quota law of 1924 as the gold standard of scientific migration management. The adoption of modern immigration laws and border controls had come to be seen as a necessary aspect of sovereignty, the sign of a modern nation that could adhere to international norms and manage its own population for the public good.

Contemporary immigration laws around the world have largely repealed the explicitly racial discriminations that originally motivated immigration law. But the basic architecture and mechanisms of discrimination established in the service of racism are still firmly in place. One of the most important techniques developed through Chinese exclusion was an array of categories to define admissible immigrants and methods to those migrants. Most current immigration laws now center on the further elaboration and enforcement of categories or point systems that define immigrants, refugees, asylum-seekers, family reunification, business travelers, investors, students, guest workers (of multiple types), professionals, tourists, and any number of other statuses that determine admissibility and the kinds of rights that can be enjoyed after admission. These categories define the globalizing classes that are free to move around the world and the unfree classes who may not move except as “illegals,” or under surveillance as guest worker and other temporary visitors.

Migration control is often seen as the exception to recent trends of globalization and open borders. But it is actually a fundamental part of globalization. Historically, it has emerged hand-in-hand with the rise of human mobility. Through globally systematized passports and visa procedures, it has preserved and even facilitated the flow of humans who travel with money, knowledge, and information. At the same time, by restricting the mobility of others, it also helps maintain the global wage and skill differentials that make the movement of goods, money, and information so lucrative.